829 F.

2d 383
17 Collier Bankr.Cas.2d 888, 16 Bankr.Ct.Dec. 934,
Bankr. L. Rep. P 71,988, 13 O.S.H. Cas.(BNA) 1424,
1987 O.S.H.D. (CCH) P 28,048

William E. BROCK, Secretary of Labor, Petitioner,

v.
MORYSVILLE BODY WORKS, INC., Respondent.
No. 87-3020.

United States Court of Appeals,

Third Circuit.
Argued May 4, 1987.
Decided Sept. 17, 1987.
Rehearing and Rehearing En Banc Denied Oct. 19, 1987.

George R. Salem, Sol. of Labor, Cynthia L. Attwood, Associate Sol. for

Occupational Safety & Health, Joseph M. Woodward, Counsel for
Appellate Litigation, Barbara Werthmann (argued), Washington, D.C., for
petitioner.
Craig S. Boyd (argued), Boyertown, Pa., for respondent.
Before WEIS, SLOVITER and BECKER, Circuit Judges.
OPINION OF THE COURT
BECKER, Circuit Judge.

This petition by the Secretary of Labor, seeking summary enforcement of an

uncontested Occupational Safety and Health Administration citation against
Morysville Body Works, Inc. (Morysville), a Chapter 11 debtor, presents three
issues. We must first decide if we have jurisdiction over this petition, as against
the contention that only the Bankruptcy Court (as surrogate for the District
Court) has jurisdiction. We conclude both that we have concurrent jurisdiction
with the Bankruptcy Court and that we should exercise that jurisdiction over
the instant petition. Second, we must decide whether we have jurisdiction to
determine issues concerning the applicability of the automatic bankruptcy stay.

We also find that we share concurrent jurisdiction with the bankruptcy court
over this issue and that we should decide it. Finally, we must determine the
effect, if any, that the automatic bankruptcy stay has on the Secretary's petition.
We conclude that, although the stay prevents us from enforcing the petition
with regard to the fine required by the citation, it does not extend to that portion
of the citation that orders abatement of health and safety violations, and for that
portion of the citation, we grant the Secretary's petition for enforcement.
I. FACTS AND PROCEDURAL HISTORY
2

On August 3, 1984 Morysville filed for reorganization under Chapter 11 of the

Bankruptcy Code, 11 U.S.C. Sec. 1101, in the United States District Court for
the Eastern District of Pennsylvania. During the reorganization, Morysville
continued operating its truck body manufacturing plant in Boyertown,
Pennsylvania. On September 17, 1985 a representative of the Secretary of
Labor conducted a health and safety inspection of the Morysville work site. The
inspection revealed that Morysville had failed to provide its employees with an
eye wash, had not affixed point-of-operation guards on certain machinery, had
failed to provide goggles or shields for employees, and had neglected to repair
certain electrical equipment. The Secretary subsequently issued a citation
charging Morysville with five violations of safety and health standards
promulgated under the Occupational Safety and Health Act (OSHA), 29 U.S.C.
Sec. 654(a)(2). The citation required Morysville to abate the violations; it also
assessed a penalty of $21,000 against the company.

Morysville did not contest the citation within fifteen working days after it was
issued. Therefore, on March 4, 1986, the citation became a final order of the
Occupational Safety and Health Review Commission that is not reviewable by
any court or agency. 29 U.S.C. Sec. 659(a). The Secretary petitioned this Court
for summary enforcement of this final order pursuant to 29 U.S.C. Sec. 660.
We in essence denied summary enforcement by setting the matter down for
oral argument, and we now consider the Secretary's Petition for Enforcement in
light of that argument and the written submissions of the parties.

II. JURISDICTION
4

Our jurisdiction over this case must be assessed in light of both OSHA and the
Chapter 11 petition filed by Morysville. Putting aside for the moment the
bankruptcy of Morysville, we look to an OSHA provision, 29 U.S.C. Sec. 660,
as the source of our jurisdiction. By its terms, section 660(b) grants us original
and exclusive jurisdiction. It provides that the Secretary may obtain
"enforcement of any final order of the Commission by filing a petition for such

relief in the United States court of appeals for the circuit in which the alleged
violations occurred or in which the employer has its principal office...." 29
U.S.C. Sec. 660(b). Section 660(b) also specifically incorporates Sec. 660(a),
which provides that "[u]pon the filing of the record with it, the jurisdiction of
the court [of appeals] shall be exclusive...." 1
5

We must also account for Morysville's bankruptcy, however, to which the

jurisdictional grant of 28 U.S.C. Sec. 1334(b) applies. Section 1334(b)
provides:

Notwithstanding any Act of Congress that confers exclusive jurisdiction on a

court or courts other than the district courts, the district courts shall have
original but not exclusive jurisdiction of all civil proceedings arising under title
11, or arising in or related to cases under title 11.

This court has defined "related to" as follows:

The usual articulation of the test for determining whether a civil proceeding is
related to bankruptcy is whether the outcome of that proceeding could
conceivably have any effect on the estate being administered in bankruptcy....
An action is related to bankruptcy if the outcome could alter the debtor's rights,
liabilities, options, or freedom of action (either positively or negatively) and
which in any way impacts upon the handling and administration of the bankrupt
estate.

Pacor, Inc. v. Higgins, 743 F.2d 984, 994 (3d Cir.1984); In re Bobroff, 766 F.2d
797, 802 (3d Cir.1985).

10

In the current case, enforcement of the Commission's citations against

Morysville will undoubtedly alter its liabilities and have an impact on the
administration of the debtor's estate. Enforcement will affect the arrangement,
standing, and priorities of Morysville's creditors. Since the estate of the debtor
has an interest in the enforcement of the Secretary's petition, it is "related to" a
case under title 11.

11

Although section 1334(b) alters the effect of the jurisdictional grant of section
660(b) by expressly rendering it non-exclusive, it does not divest us of our
jurisdiction. Rather, the effect of 28 U.S.C. Sec. 1334(b) is to grant the district
court overseeing the bankruptcy concurrent original jurisdiction. 2 2] We thus
share concurrent original jurisdiction with the district court overseeing the
petitioner's bankruptcy, and because the instant enforcement petition was first

filed with us, we must decide if we should defer to the district court in this
matter.3
12

The purpose of both sections 660(b) and 1334(b) is the expeditious resolution
of the controversy at hand. The legislative history of OSHA details this
purpose. If an employer wishes to contest a citation, he has numerous
procedures which may be followed; when a citation is not contested and has
become final, however, the order is uncontestable and is to be entered as "an
automatic court enforcement order" of the Court of Appeals. See S.Rep. No.
1282, 91st Cong., 2d Sess., reprinted in 1970 U.S.Code Cong. & Admin.News
5177, 5191; see also id. at 5211; H.R.Conf.Rep. No. 1765, 91st Cong., 2d Sess.,
reprinted in 1970 U.S.Code Cong. & Admin.News 5228, 5235. Because of the
importance of providing a safe workplace for employees, Congress provided
summary enforcement to allow the Secretary to expeditiously rectify workplace
hazards.

13

The jurisdictional grant of section 1334(b) similarly exists to allow the

expeditious resolution of bankruptcy claims. Transferring controversies that are
related to the petitioner's bankruptcy permits the district court to expeditiously
complete the bankruptcy proceedings without the necessity of awaiting the
outcome of state or federal trials. As the Senate detailed in its report,

14 broad grant of jurisdiction will enable the bankruptcy courts, which are created
This
as adjuncts to the district court for the purpose of exercising the jurisdiction, to
dispose of controversies that arise in bankruptcy cases or under the bankruptcy code.
Actions that formerly had to be tried in State court or in the Federal district court, at
great cost and delay to the estate, may now be tried in the bankruptcy court.
15

S.Rep. No. 989, 95th Cong., 2d Sess. 153 (1978) reprinted in 1978 U.S.Code
Cong. & Admin.News 5787, 5939; see also H.R.Rep. No. 595, 95th Cong., 2d
Sess. 445 (1977), reprinted in 1978 U.S.Code Cong. & Admin.News 5963,
6400 (using similar language).

16

Given the reasons for these bases of jurisdiction, no purpose would be served if
we were to defer to the district court for it to exercise the original, nonexclusive jurisdiction it shares with us. Transferring this petition would work
contrary to the stated purpose of section 660(b) of OSHA. Rather than
providing for expeditious enforcement, it would hinder the intended summary
process. Moreover, the transfer is not necessary to the expeditious
administration of the bankruptcy, the encouragement of which underlies the
jurisdictional grant over proceedings related to the bankruptcy. Because no trial
is required for this summary process, which is intended to be "automatic," no

delay is created from our exercise of our original, non-exclusive jurisdiction.

Indeed, transfer could only occasion delay.4
17

We are cognizant of the countervailing argument against the exercise of our

concurrent jurisdiction. Any order we may find enforceable would certainly
have financial consequences for the distressed debtor, and it is the bankruptcy
court that is familiar with the debtor's affairs. However, if the debtor were truly
threatened by the exercise of our jurisdiction, it could have sought a stay of
these proceedings under 11 U.S.C. Sec. 105(a). As one court of appeals has
noted, "[t]o the extent that the exercise of this jurisdiction threatens the assets
of the debtor's estate, the bankruptcy court may issue a stay of those
proceedings. 11 U.S.C. Sec. 105(A)." Securities and Exchange Comm'n v. First
Financial Group of Texas, 645 F.2d 429 (5th Cir. Unit A 1981).5

III. THE AUTOMATIC STAY

18

Having determined that this Court has jurisdiction to enforce the final order of
the Commission, the question becomes whether the enforcement petition is
stayed by the automatic stay provision of the Bankruptcy Code, 11 U.S.C. Sec.
362. The general rule under this section is that all non-bankruptcy proceedings
against a Chapter 11 petitioner are automatically stayed upon the filing of a
Chapter 11 petition. Two issues must be addressed in dealing with the
automatic stay provision. Does the court of appeals--as opposed to the
bankruptcy court--have jurisdiction to determine the applicability of the
provision? If so, does the provision apply to the instant action?

A. JURISDICTION TO DETERMINE APPLICABILITY OF AUTOMATIC STAY

19
20

We have no difficulty deciding that we may determine the applicability of the

automatic stay. As the Second Circuit has said, "[w]hether the stay applies to
litigation otherwise within the jurisdiction of a district court or court of appeals
is an issue of law within the competence of both the court within which the
litigation is pending ... and the bankruptcy court supervising the
reorganization." In re Baldwin-United Corporation Litigation, 765 F.2d 343,
347 (2d Cir.1985). The court in which the litigation claimed to be stayed is
pending thus "has jurisdiction to determine not only its own jurisdiction but
also the more precise question whether the proceeding pending before it is
subject to the automatic stay." Id.; see also NLRB v. Edward Cooper Painting,
Inc., 804 F.2d 934, 936, 938-39 (6th Cir.1986) (court of appeals has jurisdiction
to determine whether the automatic stay applied to NLRB proceeding pending
before it); Hunt v. Bankers Trust Co., 799 F.2d 1060, 1069 (5th Cir.1986)
(court has jurisdiction to determine automatic stay provision's applicability to

case pending in Texas district court). Cf. EEOC v. Hall's Motor Transport Co.,
789 F.2d 1011, 1013 (3d Cir.1986) (filing of bankruptcy petition does not act as
automatic stay of suit under Title VII). Finding that we have jurisdiction to
determine the applicability of the automatic stay provision to the pending
petition for enforcement, we turn to the question whether the automatic stay
provision applies to the instant action.
B. APPLICATION OF THE AUTOMATIC STAY
21

11 U.S.C. Sec. 362, the automatic bankruptcy stay provision, generally stays
the commencement or continuation of judicial proceedings against the debtor
upon the filing of a Chapter 11 petition, including the enforcement of
judgments.6 The section contains certain exceptions:

22

(b) The filing of a petition under section 301, 302, or 303 of this title ... does not
operate as a stay--

23

....

24

(4) under subsection (a)(1) of this section, of the commencement or

continuation of an action or proceeding by a governmental unit to enforce such
governmental unit's police or regulatory power;

25

(5) under subsection (a)(2) of this section, the enforcement of judgment, other
than a money judgment, obtained in an action or proceeding by a governmental
unit to enforce such governmental unit's police or regulatory power[.]

26

11 U.S.C. Sec. 362(b)(4), (5).

27

Because the Secretary had not commenced the instant proceeding before
Morysville filed its petition, only paragraph (4) is implicated. The legislative
history explains that paragraph (4) provides an exception to the automatic stay
"where a governmental unit is suing a debtor to stop violation of fraud,
environmental protection, consumer protection, safety, or similar police or
regulatory laws, or attempting to fix damages for violation of such a law."
H.R.Rep. No. 595, 95th Cong., 2nd Sess. 343, reprinted in 1978 U.S.Code
Cong. & Ad.News 5963, 6299 (emphasis supplied); see also S.Rep. No. 989,
95th Cong., 2nd Sess. 52, reprinted in 1978 U.S.Code Cong. & Ad.News 5787,
5838. This court has therefore found that paragraph (4), together with paragraph
(5), exempts from the automatic stay equitable actions brought by state and
federal agencies to correct violations of regulatory statutes enacted to promote

health and safety. See United States v. Wheeling-Pittsburgh Steel, 818 F.2d
1077 (3d Cir.1987); Penn Terra, Ltd. v. Department of Environmental
Resources, 733 F.2d 267 (3d Cir.1984); see also Midlantic National Bank v.
New Jersey Department of Environmental Protection, 474 U.S. 494, 106 S.Ct.
755, 761, 88 L.Ed.2d 859 (1986) (one of the purposes of paragraph (5) is to
protect public health and safety).
28

There are two components to the citation for which the Secretary seeks
summary enforcement. The citation orders Morysville to abate its continuing
violations of OSHA. It also orders the debtor in bankruptcy to pay a fine of
$21,000. In light of the principles applicable to governmental enforcement
actions against bankrupt entities, we examine each of these components in turn
to determine the respective applicability of the automatic stay.

29

1. Abatement Orders. In this case, the Secretary seeks enforcement of a final

order that in part compels Morysville to abate certain safety violations by
requiring the company to install an eye wash, affix point-of-operation guards
on machinery, provide goggles or shields for employees, and repair certain
electrical equipment. Remedying the stated violations will undoubtedly require
Morysville to spend money, perhaps considerable sums, thereby significantly
affecting the finances of the distressed corporation. The Secretary's order,
however, was meant to prevent future harm to employees and to restore the
work site to a safe condition. This portion of the order is therefore fully
prospective, see Penn Terra, 733 F.2d at 274-78; ITT Grinnell Corp. v.
Donovan, 744 F.2d 344, 350 (3d Cir.1984), and we shall grant the petition
insofar as it orders abatement of violations of the Occupational Safety and
Health Act. Cf. Wheeling-Pittsburgh, 818 F.2d at 1086-87 (3d Cir.1987);
(bankruptcy no bar to prospective enforcement of Clean Air Act); In re:
Commonwealth Oil Refining Co., 805 F.2d 1175 (5th Cir.1986), cert. denied, -- U.S. ----, 107 S.Ct. 3228, 97 L.Ed.2d 734 (1987) (same; Resource
Conservation and Recovery Act); Cournoyer v. Town of Lincoln, 790 F.2d 971
(1st Cir.1986) (same; zoning ordinance); Penn Terra, 733 F.2d at 274-78
(same; state environmental laws).

30

We are mindful of the position in which this conclusion may place financially
distressed businesses. Although protected by the automatic stay from
enforcement of direct money judgments, see infra, companies that have sought
bankruptcy protection are not automatically insulated from orders to abate,
which may have as great or greater financial consequences than direct money
judgments. Nevertheless, an entity that operates in a regulated sphere is obliged
to comply with the relevant regulations; otherwise, it must exit the field. As we
have specifically found in the OSHA field, "Congress did contemplate that the

Secretary's rule making would put out of business some businesses so

marginally efficient or productive as to be unable to follow standards otherwise
universally feasible." AFL-CIO v. Brennan, 530 F.2d 109, 123 (3d Cir.1975).
"It would appear to be consistent with the purposes of the [OSH] Act to
envisage the economic demise of an employer who has lagged behind the rest
of the industry in protecting the health and safety of employees and is
consequently financially unable to comply with new standards as quickly as
other employers." American Iron & Steel Institute v. OSHA, 577 F.2d 825, 835
(3d Cir.1978) (quoting Industrial Union Dept. v. Hodgson, 499 F.2d 467, 478
(D.C.Cir.1974)); see also Arkansas-Best Freight Systems, Inc. v. OSHRC, 529
F.2d 649, 654 n. 6 (8th Cir.1976) (same); cf. Forging Industry Ass'n. v.
Secretary of Labor, 773 F.2d 1436, 1453 (4th Cir.1985) (en banc) (finding
OSHA safety standard valid "even if it does portend disaster for some marginal
firms").
31

2. Money Judgment. In addition to enforcement of the abatement order, the

Secretary also seeks entry of a money judgment for $21,000. Although
Congress was clear in exempting abatement actions from the automatic stay, it
plainly drew the line at enforcement of money judgments.

32 the assets of the debtor are in the possession and control of the bankruptcy
Since
court, and since they constitute a fund out of which all creditors are entitled to share,
enforcement by a governmental unit of money judgment would give it preferential
treatment to the detriment of all other creditors.
33

H.R.Rep. No. 595, 95th Cong., 2nd Sess. 343, reprinted in 1978 U.S.Code
Cong. & Ad.News 5963, 6299. Thus, although the stay does not operate against
actions or proceedings by governmental units "attempting to fix damages for
violation of such a [health and safety] law," id. at 343, 1978 U.S.Code Cong. &
Ad.News at 6299; see also S.Rep. No. 989, 95th Cong., 2nd Sess. 52, reprinted
in 1978 U.S.Code Cong. & Ad.News 5787, 5838, it does prevent a
governmental unit from enforcing a money judgment. The Secretary is not
before us to fix the amount of damages owed by Morysville; under 29 U.S.C.
Sec. 659(a), a final determination of that issue has been made. Rather, he in part
seeks summary enforcement of a money judgment pursuant to 29 U.S.C. Sec.
660. The automatic stay clearly prevents us from enforcing this portion of the
citation. As punishment for past violations, it is not a fully prospective order,
which, despite the financial consequences to the distressed corporation, we may
enforce to protect workers from the hazards of an unsafe work.

34

Similarly, the Supreme Court in Ohio v. Kovacs, 469 U.S. 274, 105 S.Ct. 705,
83 L.Ed.2d 649 (1985), distinguished orders requiring the abatement of

regulatory violations from the entry of a money judgment. In Kovacs, a receiver

was appointed pursuant to state environmental laws to implement compliance
with those laws, including the cleanup of discharged pollution. Before the
receiver completed the cleanup, however, Kovacs filed for bankruptcy
protection. The receiver sought money from the bankrupt estate to effectuate
the required environmental cleanup, but the bankruptcy court, the district court,
and the court of appeals all found that Ohio was impermissibly attempting to
collect from Kovacs a monetary payment. See id. at 707-08; In re Kovacs, 681
F.2d 454 (6th Cir.1982); In re Kovacs, 29 B.R. 816 (Bkrtcy.S.D.Ohio 1982).
The Supreme Court affirmed, holding that the enforcement of such a money
judgment was contrary to the automatic stay. In a footnote, however, the court
explicitly distinguished the prospective enforcement of health and safety
regulations at issue in Penn Terra on the basis that it was "an effort to enforce
the police power statutes of the State, not a suit to enforce a money judgment."
Kovacs, 105 S.Ct. at 711, n. 11. "The automatic stay provision does not apply
to suits to enforce the regulatory statutes of the State," recognized the Court,
"but enforcement of such a judgment by seeking money from the bankrupt ... is
another matter." Id.
35

We find no feature of federal health and safety regulations that would alter the
application of the Supreme Court's analysis, which concerned only state health
and safety laws. Cf. Wheeling-Pittsburgh, 818 F.2d at 1086-87 (applying Penn
Terra to Clean Air Act); In re: Commonwealth Oil Refining Co., 805 F.2d 1175
(5th Cir.1986), petition for cert. filed, 55 U.S.L.W. 3622 (Feb. 23, 1987) (No.
86-1400) (Resource Conservation and Recovery Act). We must therefore deny
the petition insofar as it seeks entry of a $21,000 judgment.

IV. CONCLUSION
36

We will grant the Secretary's petition insofar as it seeks to enforce that portion
of the citation that orders Morysville to abate its continuing violations of the
Occupational Safety and Health Act. We will deny the Secretary's petition
insofar as it seeks to enforce the payment of a $21,000 penalty.

37

WEIS, Circuit Judge, dissenting.

38

The court is confronted with the necessity of choosing between two statutes,
each of which grants jurisdiction to a different court.

39

Because the petition was filed in this court, consideration of our jurisdiction
may be the appropriate first step. As the majority points out, the petition for

enforcement here rests on 29 U.S.C. Sec. 660(b). The subsection provides that
in the instance of a noncontested citation, the Secretary may file a petition for
enforcement that shall be entered by the clerk of the court of appeals. Any
contempt proceeding arising from that order is to be conducted by the court of
appeals.
40

Subsection (b) of Sec. 660 contains no language granting jurisdiction, but does
state "the provisions of subsection (a) ... shall govern such proceedings to the
extent applicable." Subsection (a), in turn, provides that "any person adversely
affected or aggrieved" may petition the court of appeals for review of the
merits of a commission order." After the petition is filed, the commission must
forward the record to the court of appeals. The statute specifies that "[u]pon
such filing, the court shall have jurisdiction of the proceeding." If the court had
remanded the matter to the commission for additional evidentiary findings, and
the case returns to the court, "upon the filing of the record with it, the
jurisdiction of the court shall be exclusive."

41

A close reading of the statute reveals that it does not specifically grant
"exclusive" jurisdiction to the court of appeals to enforce a noncontested
citation. Subsection (b) refers back generally to subsection (a) "to the extent
applicable." But subsection (a) confers "exclusive" jurisdiction only in cases
where the record has been returned to the court after remand. The word
"exclusive" is conspicuously absent when the statute refers to jurisdiction on
the initial filing of the record.

42

To some extent, therefore, the statute is ambiguous and does not clearly state
that the court of appeals' jurisdiction is exclusive in the circumstances
presented here. Although the majority's conclusion that the statute gives us
exclusive jurisdiction is a permissible one, it is not compelled by the language
itself.

43

The bankruptcy statute, however, is more definitive. Title 28 U.S.C. Sec.

1334(b) states that "[n]otwithstanding any Act of Congress that confers
exclusive jurisdiction on a court or courts other than the district courts, the
district court shall have original but not exclusive jurisdiction of all civil
proceedings ... related to cases under title 11." I agree with the majority and the
concession of the Secretary that this case is related to the bankruptcy, and
therefore the bankruptcy court, at least, has concurrent original jurisdiction.

44

The question then becomes which court should assume original jurisdiction.
The majority admits that enforcement of the citation will undoubtedly alter the

debtor's liabilities and have an impact on the administration of the bankruptcy

estate. That concession recognizes only the minor effects and assumes that
enforcement will be simple and easily accomplished. Little imagination is
required, however, to visualize complications arising from the debtor's status
under the bankruptcy laws. In this case, for example, it may be that to comply
with the commission's order some machines could be modified to remove a
dangerous condition on either a short or long term basis. Obviously, the method
chosen might hinge on the likelihood of a plan of reorganization, the assets
available in the estate, and the interests of the creditors. At that point, too, the
commission might have to be consulted before the matter is resolved after a
hearing and factual findings.
45

Other reasonably anticipated developments requiring further proceedings that

take into account the various and sometimes conflicting interests need not be
explored at length here. The point is that, compared to an appellate tribunal, a
bankruptcy court has far more familiarity with the debtor's estate and better
facilities for developing relevant facts when questions on enforcement arise.

46

As we said in Pacor, Inc. v. Higgins, 743 F.2d 984, 994 (3d Cir.1984),
Congress intended, through this legislation, "to grant comprehensive
jurisdiction to the bankruptcy courts so that they might deal efficiently and
expeditiously with all matters connected with the bankruptcy estate." The
majority's action here frustrates that aim.

47

When a case presents a realistic possibility that hearings and fact findings might
be necessary and jurisdiction is present in both the trial and appellate courts,
sound judicial administration dictates that the trial court address the matter in
the first instance. Appellate procedures by their collegial nature are
cumbersome and not readily adaptable to trials and fact finding.

48

The majority concludes that deferring to the bankruptcy court in these

circumstances would result in delay. I believe that any delay would be minimal
and of no consequence here. It would be surpassed, in any event, by the delay
encountered if contempt proceedings are instituted in this court and referral to
the bankruptcy court then becomes necessary.

49

No special need to invoke the competence of an appellate tribunal is present

here. Were we faced with a petition for review challenging the merits of the
commission's findings, I would agree with the majority that we should proceed
with the case. Appellate review, after all, is our primary mission. However, in
the absence of need for that function, the bankruptcy court, in my view, is in a

better position to afford prompt and effective enforcement.

50

This proceeding presents an appropriate occasion to question the wisdom of the

general policy of requiring courts of appeals to enforce noncontested
administrative agency orders. Congress chose that method in an era when
courts of appeals were not as besieged as they are today with the unprecedented
volume of cases. It is time to reconsider the policy.

51

A collegial body cannot simply expand by adding members without impairing

its efficiency and encountering the law of diminishing returns. Enlarging a
committee will seldom, if ever, increase its output proportionately.

52

In a district court, the situation is different because to a great extent each judge
functions individually and independently of the others. Increasing the number
of judges in that forum has a far greater impact on total case-handling capacity
than in an appellate body. A district court consequently may more easily
expand to absorb additional work. This fundamental difference between the
courts suggests that matters not requiring the special treatment of multi-judge
review should be docketed in the first instance in the district courts.

53

Transferring jurisdiction over enforcement of nonreviewable orders to district

courts would relieve the courts of appeals of an assignment which, although not
a major factor in their workload, nevertheless consumes time better allocated to
the essential role of appellate review. At a time when overworked courts of
appeals are struggling with ever-increasing caseloads, even a slight reduction in
the matters assigned to them can help.1

54

Clearly a solution lies in legislative changes. However, in the meantime, courts

of appeals should not forego the opportunity for legitimate self-help when the
occasion arises. I believe this case is an example of a situation when this court
should take that course. The public interest would best be served by referring
this petition to the bankruptcy court. I dissent from the majority's decision not
to do so.

With all respect to Judge Weis' reading of the statute, the exclusive jurisdiction
provision at the end of subsection (a) appears to us to modify the entire
subsection, covering both contested and uncontested citations. Moreover,
neither the statute nor logic mandates that exclusive jurisdiction depends on
whether the record was returned for additional evidentiary findings

Additionally, as one appellate court has noted, "the Sec. 362 exceptions to the
automatic stay, as well as the provisions of [former 28 U.S.C.] Sec. 1471(b)
[now 28 U.S.C. Sec. 1334(b) ], recognize that courts other than the bankruptcy
court have jurisdiction to hear related proceedings involving the debtor."
Securities and Exchange Comm'n v. First Financial Group of Texas, 645 F.2d
429, 439 (5th Cir. Unit A 1981); see also infra Part III.B (discussing
applicability of the exceptions to the automatic stay). Finding that the automatic
stay did not apply to a Title VII action, a panel of this court had no occasion to
question its jurisdiction, despite Sec. 1334(b) and the financial consequences
that would flow from any order. See EEOC v. Hall's Motor Transit Co., 789
F.2d 1011, 1013-14 (3d Cir.1986). Other courts faced with proceedings not
within the purview of the automatic stay have similarly found the disputes
justiciable. See, e.g., EEOC v. Rath Packing Co., 787 F.2d 318 (8th Cir.1986)
(EEOC Title VII action); Ahrens Aircraft, Inc. v. NLRB, 703 F.2d 23, 24 (1st
Cir.1983) (per curiam) (NLRB backpay order)

Conversely, had the petition first been filed with the district court, the issue
would concern whether that court should defer to us

Similarly, had the petition first been filed with the district court, transfer would
work against the reasons for the concurrent original, non-exclusive jurisdiction

Additionally, while we hold that the automatic stay is unavailing, see infra Part
III.B, case-by-case relief is available to bankrupt debtors through Sec. 105(a).
As the House Report recognized in the context of state health and safety
regulations,
[t]he States will be able to enforce their police and regulatory powers free from
the automatic stay. The bankruptcy court has ample additional power to prevent
damage to the bankrupt estate by such actions on a case-by-case basis. By
exempting these State actions from the scope of the automatic stay, the court
will be required to examine the State actions more carefully, and with a view to
protecting the legitimate interests of the State as well as of the estate, before it
may enjoin actions against the debtors or the estate.
H.R.Rep. No. 595, 95th Cong., 2d Sess. 175, reprinted in U.S.Code Cong. &
Ad.News 5963, 6135. The analysis does not vary where, as here, a federal
health and safety regulation is involved.

11 U.S.C. Sec. 362(a)(1) provides:

Except as provided in subsection (b) of this section, a petition filed under
section 301, 302, or 303 of this title operates as a stay, applicable to all entities,
of--

(1) the commencement or continuation, including the issuance or employment

of process, of a judicial, administrative, or other proceeding against the debtor
that was or could have been commenced before the commencement of the case
under this title, or to recover a claim against the debtor that arose before the
commencement of the case under this title[.]
11 U.S.C. Sec. 362(a)(2) stays "the enforcement against the debtor or against
property of the estate, of a judgment obtained before commencement of the
case under this title."
1

Indeed, it may be advisable to transfer the enforcement of contested

administrative orders to a district court after appellate review has been
completed